The Act defines several key concepts. “University” means the Southern Cross University established by the Act (s 3(1)). “Council” means the Council of the University (s 3(1)). “Commercial functions of the University” means the commercial functions described in s 6(3)(a) (s 3(1)). A “graduate of the University” is a person who is the recipient of a degree or diploma, or other award or certificate prescribed by by‑laws, conferred by the University or any former institution that is now part of the University, or any predecessor (s 3(2)). In the Act, a reference to a function includes a power, authority, and duty (s 3(3)). Notes included in the Act do not form part of the Act (s 3(4)). The Council’s membership includes several categories: official members (the Chancellor, the Vice-Chancellor, and the presiding member or deputy presiding member of the Academic Board), elected members (staff and students), Council appointed members (external persons appointed by the Council), and Ministerially appointed members (external persons appointed by the Minister) (s 9B(3), s 9D, s 9E, s 9F, s 9G, s 9H). “External person” means a person other than a member of the academic or non‑academic staff or an undergraduate or graduate student of the University (s 9). “University commercial activity” means any activity engaged in by or on behalf of the University in the exercise of its commercial functions, and any other activity comprising promotion, establishment of, or participation in any partnership, trust, company or other incorporated body, or joint venture, that is declared by the Guidelines to be a University commercial activity (s 21A). “Controlled entity” means a controlled entity within the meaning of the Government Sector Finance Act 2018 of the University or Council (s 16A(6)). “Constitution rules” are rules made by the Council prescribing the number of members in each category other than official members (s 9B(4)). The “Guidelines” means the guidelines determined by the Council under s 21B for University commercial activities (s 21A). The “Visitor” is the Governor, but has ceremonial functions only and no dispute resolution jurisdiction (s 14). The “Academic Board” is a body consisting of the Vice-Chancellor and other persons determined by the Council in accordance with the by‑laws (s 15). The Act also defines “appointed member”, “elected member”, “graduate member”, “Ministerially appointed member”, and “official member” (s 9).

The Act primarily affects the Southern Cross University as a body corporate, its Council, and all persons who are part of the University: the Council members (official, elected, appointed by the Council, and appointed by the Minister), the Chancellor, the Deputy Chancellor, the Vice-Chancellor, the Academic Board, the professors, full‑time academic staff and other staff prescribed by by‑laws, the graduates, and the students (s 4). The Minister for the time being administering the Act has powers to approve certain Council decisions, appoint Ministerially appointed members, approve land transactions, refer matters to the Ombudsman or Auditor-General, and make regulations (s 9G, s 18(3), s 21E, Sch 3 cl 2). The Governor must approve by‑laws (s 29(2)) and may make regulations under savings provisions (Sch 3 cl 2). The Treasurer may advance money to the Council (s 23) and may direct stamp duty exemptions (s 23A). The Act also affects the Ombudsman and the Auditor-General, who may receive referrals from the Minister concerning University commercial activities (s 21E). Persons who are members of a committee of the Council are also subject to the disclosure of material interests obligations (Sch 2A cl 5(8)). Controlled entities of the University are affected by the requirement that they not exercise functions the University itself is not authorised to exercise, unless permitted by the Minister (s 16A). The TAFE Commission, the Minister administering the Education Act 1990, and the Director-General of School Education may be parties to arrangements for a joint education facility at Coffs Harbour (s 22). Former employees and officers of the former University of New England and former campuses (the University of New England, Northern Rivers and the Coffs Harbour Centre) are affected by the transfer of staff provisions in Schedule 3 Part 2, which preserve their terms and conditions, superannuation rights, and leave entitlements. Students enrolled at a former campus immediately before transfer day become students of Southern Cross University and are entitled to complete their courses under arrangements with the new University of New England (Sch 3 cl 22). The Act also affects any person dealing with the University regarding property, commercial activities, or debts due to the University (s 31).

The Act imposes specific duties on Council members set out in Schedule 2A. A Council member must carry out functions in good faith in the best interests of the University as a whole and for a proper purpose (Sch 2A cl 1). They must act honestly and exercise a reasonable degree of care and diligence (Sch 2A cl 2). They must not make improper use of their position to gain an advantage for themselves or another person or to cause detriment to the University (Sch 2A cl 3). They must not make improper use of information acquired because of their position for those purposes (Sch 2A cl 4). Council members must disclose material interests in matters being considered by the Council if the interest appears to raise a conflict with proper performance of duties (Sch 2A cl 5(1)). After disclosure, the member must not be present during deliberation or take part in any decision on the matter unless the Council otherwise determines (Sch 2A cl 5(4)). The Council must record particulars of disclosures in a book open for inspection (Sch 2A cl 5(3)). A contravention of the disclosure obligation does not invalidate any Council decision (Sch 2A cl 5(6)). The Council itself has duties: it must monitor the performance of the Vice-Chancellor, oversee the University’s performance and academic activities, approve the mission, strategic direction, annual budget and business plan, oversee risk management and risk assessment, approve and monitor systems of control and accountability (including for controlled entities), approve significant University commercial activities, establish policies and procedural principles, ensure grievance procedures and appeal rights are published, regularly review its own performance, adopt a statement of its primary responsibilities, and provide an induction and development program for members (s 16(1B)). The Council must also make available a program of induction and development for its members (s 16(1B)(l)). The Council must ensure a controlled entity does not exercise functions the University is not authorised to exercise, unless the Minister permits (s 16A(1)). The Council must maintain a Register of University commercial activities (s 21C) and provide reports to the Minister on request (s 21D). The Council may delegate its functions subject to restrictions (s 17), and the Vice-Chancellor may sub-delegate if authorised. The University must not deny admission or benefits to any person because of religious or political affiliations, views, or beliefs (s 25). A student, graduate, or staff member is entitled to be exempted from membership of the body corporate of the University on grounds of conscience (s 26). The Chancellor and Deputy Chancellor may be removed by a no confidence motion passed by a two-thirds majority at two consecutive ordinary meetings (s 12A). Council members may be removed for breach of duty under s 21G, requiring notice, a two-thirds majority, and a reasonable opportunity to reply. The Act confers rights on the University to recover charges, fees, and other money due as a debt in any competent court (s 31).

The Act provides for removal from office as the primary enforcement mechanism for breach of duty by Council members. Section 21G allows the Council to remove a member for breach of a duty set out in Schedule 2A. The removal requires a motion supported by at least two-thirds of the total number of members for the time being of the Council, at a meeting with proper notice (including notice of the motion), and the member must be given a reasonable opportunity to reply orally or in writing (s 21G(2)-(5)). If the member does not attend, a reasonable opportunity is taken to have been given if notice was duly given (s 21G(5)). A member may not be removed for breach of duty except under s 21G (s 21G(6)). Section 21G applies only to breaches constituted by acts or omissions after the relevant day in 2004 (Sch 3 cl 36). The Chancellor or Deputy Chancellor may be removed by a no confidence motion supported by at least two-thirds of the total number of members at two consecutive ordinary meetings, without the need to establish any breach of duty (s 12A). The Act does not specify criminal penalties for breaches of the Act itself. However, the Minister may refer University commercial activities to the Auditor-General for investigation or to the Ombudsman as a complaint under the Ombudsman Act 1974 (s 21E). The Council must report in its annual report on any action taken to implement recommendations of the Ombudsman or Auditor-General concerning the Council or University (s 17B). The office of a Council member may become vacant under Schedule 1 clause 2 for reasons including conviction in New South Wales of an offence punishable by imprisonment for 12 months or more, or becoming disqualified from managing a corporation under the Corporations Act 2001 (Cth) (Sch 1 cl 2(f),(g)). A member’s office also becomes vacant if absent from three consecutive meetings without being excused within six weeks (Sch 1 cl 2(i)). Any charge, fee, or money due to the University under the Act may be recovered as a debt in any court of competent jurisdiction (s 31). The Act provides a personal liability protection for Council members and persons acting under direction of the University or Council in good faith for the purpose of executing the Act (Sch 1 cl 5). The rule against remoteness of vesting does not apply to conditions of property acquisition (s 18(5)). The operation of the Act’s property transfer provisions is not regarded as a breach of contract, confidence, or civil wrong, and does not give rise to any remedy or event of default (Sch 3 cl 17).

Section 17A expressly states that nothing in the Act limits or otherwise affects the operation of the Ombudsman Act 1974, the Government Sector Finance Act 2018, or the Government Sector Audit Act 1983 in respect of the University or the Council. The Government Sector Finance Act 2018 is also referenced in relation to the regulated provision of annual reporting information to Parliament (note to s 16) and the definition of “controlled entity” in s 16A(6). The Government Sector Audit Act 1983 is referenced in s 17A. The Interpretation Act 1987 contains definitions and provisions that affect the interpretation and application of this Act (note to s 3(1)). The Land Acquisition (Just Terms Compensation) Act 1991 applies when the Minister acquires land for the purposes of the Act, by agreement or compulsory process, at the University’s request and upon provision for payment (s 20). The Public Works Act 1912 applies such that acquisition under s 20 is taken to be for an authorised work, with the Minister as Constructing Authority, but ss 34-37 of that Act do not apply to works constructed under this Act (s 20(3),(4)). The Environmental Planning and Assessment Act 1979 is referenced in relation to planning agreements: the Council may enter into a planning agreement under s 7.4 of that Act without needing the Minister’s approval if the agreement does not require the University to dedicate relevant land free of cost (s 18(4)(c)). The Duties Act 1997 interacts via s 23A, which exempts the University and Council from duty on things done for borrowing money or investing funds, unless the Treasurer otherwise directs. The Stamp Duties Act 1920 is referenced in relation to exemption from stamp duty on conveyances or transfers of land from the Crown to the University (s 21(2)(a)). The Corporations Act 2001 (Cth) is relevant because disqualification from managing a corporation under Part 2D.6 is a ground for vacation of a Council member’s office (Sch 1 cl 2(g)). The Industrial Relations Act 1991 is referenced in the savings provisions relating to adjustment of wages and operation of the Act in relation to transferred staff (Sch 3 cl 6(2), cl 10(3), cl 13(1)). The Higher Education (Amalgamation) Act 1989 is referenced in the definition of a graduate of the University (s 3(2)(b)). The Universities Governing Bodies Act 2011 is referenced in Schedule 3 Part 10, which deals with the adoption of standard governing body provisions and the continuation of existing members. The Education Act 1990 is referenced in relation to the joint education facility at Coffs Harbour (s 22). The University of New England Act 1989 and the University of New England Act 1993 are referenced in the savings and transitional provisions regarding former campuses and transfer of staff, assets, and rights (Sch 3). The Ombudsman Act 1974 permits the Minister to refer a complaint to the Ombudsman (s 21E).

The Act has been amended by a significant number of Acts and statutory rules. The original Act received assent in 1993. The first major amendment was by the University Legislation (Amendment) Act 1994 (No 16), which substituted s 14 to limit the Visitor’s role to ceremonial functions and applied that change to existing disputes unless an inquiry had already commenced (Sch 3 cl 29). The Statute Law (Miscellaneous Provisions) Act 1999 (No 85) repealed s 7 and amended s 10 and Schedule 3, and also included provisions concerning the composition of the Council. The Universities Legislation Amendment (Financial and Other Powers) Act 2001 (No 101) made extensive changes: it substituted s 6 (the object and functions of the University), inserted s 16A (controlled entities), inserted s 17A (operation of certain Acts), s 17B (recommendations of Ombudsman or Auditor-General), and Division 3 of Part 4 (commercial activities) containing ss 21A-21E, inserted s 23A (stamp duty exemption), and amended Schedules 1, 2, and 3. The University Legislation Amendment Act 2004 (No 115) inserted Part 4A (ss 21F, 21G) and Schedule 2A (duties of Council members), substituted s 10 (term of office), substituted s 30 (rules), and amended ss 3, 16, 16A, 29, and Schedules 1 and 3. The Statute Law (Miscellaneous Provisions) Act 2005 (No 98) amended s 10. The Statute Law (Miscellaneous Provisions) Act 2008 (No 23) and 2010 (No 19) amended Schedule 2A. The Universities Governing Bodies Act 2011 (No 51) inserted s 12A (removal of Chancellor or Deputy Chancellor) and amended ss 11 and 12, and Schedule 1. The Statute Law (Miscellaneous Provisions) Act 2013 (No 47) amended ss 28 and Schedule 2A. The Universities Legislation Amendment (Regulatory Reforms) Act 2014 (No 43) amended ss 6, 16, 18, 19, 21A, 21B, 30, and Schedules 2 and 3. The Universities Governing Bodies (Southern Cross University) Order 2015 (97) inserted new Divisions 1 and 2 of Part 3 and substituted ss 9-10, and amended ss 30 and Schedules 1 and 3. The Statute Law (Miscellaneous Provisions) Act 2017 (No 22) amended ss 16, 18, and Schedules 1 and 3. The Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2017 (No 23) amended s 18. The Statute Law (Miscellaneous Provisions) Act 2018 (No 70) amended notes and references to the Government Sector Finance Act 2018. The Statute Law (Miscellaneous Provisions) Act 2024 (No 66) substituted ss 17 and 18. The Act has not been amended since 2024.

The Act itself does not reference any specific court cases or litigation. However, its provisions have likely been considered in judicial proceedings, particularly those relating to the governance of universities. The Act expressly removes the Visitor’s jurisdiction to resolve disputes (s 14(2)), which would have historically been the forum for internal university disputes. This means that any disputes concerning the affairs of the University - other than matters involving ceremonial functions - must be resolved through other legal avenues, including the ordinary courts or tribunals. The Act provides that any charge, fee, or money due to the University may be recovered as a debt in any court of competent jurisdiction (s 31), which would be a common basis for debt recovery proceedings. The Minister may refer matters relating to University commercial activities to the Ombudsman or Auditor-General (s 21E), and such referrals could result in reports that may be subject to judicial review. The Act’s provisions on Committee on the University’s commercial activities (s 21B, s 21C) and control of controlled entities (s 16A) may have been relevant in disputes about the scope of the Council’s powers or the validity of commercial transactions. The requirement that a Council member must not have a material interest in a matter without disclosure (Sch 2A cl 5) could give rise to litigation concerning decisions made where interests were not disclosed, although a contravention does not invalidate any decision (Sch 2A cl 5(6)). The removal of Council members under s 21G for breach of duty, or the removal of the Chancellor or Deputy Chancellor under s 12A, could be challenged in court on procedural grounds. The Act’s savings and transitional provisions, particularly those concerning the transfer of assets, rights, and staff from the former University of New England (Schedule 3 Parts 2, 3, 5), may have been the subject of litigation regarding property rights, employment entitlements, or the validity of the transfer. No such cases are named in the Act.

Several provisions in the Act contain nuances that could easily be overlooked. The notes included in the Act do not form part of the Act (s 3(4)), so they cannot be relied upon to create obligations or interpret the Act in a way that is not supported by the text. The Council must have a majority of external persons (s 9B(6)), but no single category of members may constitute a majority of the total number of members (s 9B(7)). This means that even if the external members collectively outnumber internal members, the category of, say, Ministerially appointed members cannot itself be a majority. The definition of “associate” in Schedule 2A clause 5(10) for the purpose of material interest disclosure is very broad: it includes a business partner or friend of the member, and also the spouse, de facto partner, parent, child, brother, sister, business partner, or friend of a person referred to in that list, if that relationship is known to the member, and includes any other person known to the member for reasons other than that person’s connection with the University or public reputation. This could capture a wide range of relationships and requires careful consideration before participating in Council discussions. A contravention of the disclosure duty does not invalidate any decision of the Council (Sch 2A cl 5(6)), so a decision might stand even if a member failed to disclose a material interest. The Visitor (the Governor) has only ceremonial functions and no jurisdiction to resolve disputes (s 14). This means internal University disputes cannot be taken to the Visitor as a form of appeal or review, which is a departure from the traditional visitorial jurisdiction of some older universities. The rule of law against remoteness of vesting does not apply to a condition of acquisition of property to which the University has agreed (s 18(5)), which allows the University to accept property with conditions that might otherwise be void for remoteness. The Council may lease land acquired from the State at nominal or less than market value without the Minister’s approval if the term is no more than 21 years and the Council is satisfied the leasing is consistent with the University’s object and functions (s 18(4)(a)). But if the term is up to 99 years for utilities infrastructure or services, the Minister’s approval is also not needed (s 18(4)(b)). There is no explicit power for the Council to sub-delegate except by the Vice-Chancellor if the Council’s delegation authorises it (s 17(3)). The ten-year maximum consecutive years of office for Council members (s 10(3)) has an exception: the Council may otherwise resolve in relation to a person. The Act does not prescribe any grounds for such a resolution. The by-laws require the Governor’s approval (s 29(2)), but rules made under by-laws do not require such approval. Election rules must be consistent with sound and democratic electoral practices, procedures, and methods of voting (s 30(1B)). The Council must make election rules readily available to the public (s 30(1C)). The Council may provide remuneration to Council members by a two-thirds resolution (Sch 1 cl 10), but there is no default right to payment. The safety net for staff transferred from former campuses is detailed but note that a person who ceases to be a member of staff of a former campus is not entitled to any payment or other benefit merely because of that cessation (Sch 3 cl 13(3)).

For the Council to comply with the Act, several structural and ongoing steps are required. First, the Council must determine the total number of members within the statutory range of 11 to 22 by a two-thirds resolution, and must by constitution rules prescribe the number of members in each category (official, elected, Council appointed, Ministerially appointed) (s 9B). The constitution rules themselves must be made by a two-thirds resolution. The Council must ensure that a majority of members are external persons and that no single category constitutes a majority (s 9B(6),(7)). The Council must give the Minister written notice of any resolution under s 9B within seven days (s 9B(8)). The Council must ensure that at least two members have financial expertise and at least one has commercial expertise (s 9C(1)). All appointed members must have relevant expertise and experience and an appreciation of the University’s object, values, functions, and activities (s 9C(2)). The Council must make by-laws to prescribe matters including elections, terms of office, and procedures, and those by-laws require approval by the Governor (s 29). Election rules must be made by the Council (not delegated) and must be sound and democratic and made readily available to the public (s 30(1A)-(1C)). The Council must regularly review its own performance (s 16(1B)(j)) and adopt a statement of its primary responsibilities (s 16(1B)(k)). The Council must provide an induction and development program for its members (s 16(1B)(l)). The Council must approve the University’s mission, strategic direction, annual budget, and business plan (s 16(1B)(d)). It must oversee risk management and risk assessment across the University, including obtaining independent audit reports of entities in which the University has an interest but does not control or with which it has entered into a joint venture (s 16(1B)(e)). The Council may enter into financial risk management transactions (s 16(1B)(e1)). The Council must approve and monitor systems of control and accountability, including for controlled entities (s 16(1B)(f)). The Council must approve significant University commercial activities (s 16(1B)(g)). For commercial activities, the Council must determine and maintain Guidelines (by resolution) that require feasibility and due diligence, appropriate governance and administrative arrangements, risk assessment and management, delegation controls, a protocol to avoid conflicts of interest, and the power to declare activities as University commercial activities (s 21B). The Council must ensure the Guidelines are complied with (s 21B(4)). The Council must maintain a Register of University commercial activities with specified details and provide a copy to the Minister on request (s 21C). The Council must report to the Minister on commercial activities when requested (s 21D). For controlled entities, the Council must ensure they do not exercise functions the University is not authorised to exercise unless permitted by the Minister, and must as far as reasonably practicable ensure the governing bodies of controlled entities have appropriate expertise, comprise at least some non-Council/non-staff/non-student members, adopt and evaluate governance principles, document a corporate strategy with measurable targets, and establish a protocol for reporting to the Council (s 16A). The Council must ensure that grievance procedures and information on appeal rights are published in a form readily accessible to the public (s 16(1B)(i)). The Council must include in its annual report details of actions taken to implement recommendations of the Ombudsman or Auditor-General (s 17B). The Council must keep a record of disclosures of material interests under Schedule 2A clause 5 and make it open for inspection (Sch 2A cl 5(3)). The Council must ensure that members comply with duties set out in Schedule 2A and may need to consider removal for breach under s 21G. The Council may delegate functions but cannot delegate the power of delegation itself (s 17). The Vice-Chancellor must not sub-delegate unless the Council’s delegation authorises it. The Council must also ensure that land transactions comply with s 18, particularly obtaining the Minister’s approval for selling, mortgaging, charging, or leasing relevant land (land acquired from the State at nominal or less than market value) except for the specified exceptions. The Council must also manage and control property vested in the Crown under s 19, subject to the Minister’s control and direction.